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Thursday
Apr122012

Landmark Decision: CA Supreme Court Decides Employers Are Not Meal Police

Lawyer for EmployersEmployment Defense Attorney Los Angeles

 

by Sue M. Bendavid
818.907.3220

Employer Lawyer Los Angeles Google+

 

Employees of Brinker Restaurant Corporation (the parent company of Chili’s, Maggiano's, and Macaroni Grill, among others) brought a class action against Brinker alleging years of meal and rest period violations.

The employees claimed Brinker required them to take early lunches and then work an additional five to nine hours without a second meal break – and that this requirement violated wage and hour laws.

The plaintiffs also alleged employees were required to work off the clock during meal periods; that managers altered employee time cards; and that Brinker had an obligation to ensure employees take their meal periods.

The trial court ruled mostly for the employees, but Brinker appealed, and the Appellate Court ruled in favor of the employer and determined the claim could not proceed as a class action. The California Supreme Court granted review to resolve the questions regarding the nature of meal and rest breaks, how they should be provided, as well as whether or not the claims presented should be treated in a class action setting. The Court heard arguments in November, and delivered its decision today.

According to the decision written by Associate Justice Kathryn M. Werdegar, the most contentious issue proved to be whether employers must police meal periods to ensure employees take those breaks without doing any work in a 30 minute time frame.

 

The Supreme Court's Decision – Providing vs. Policing

 

The Supreme Court concluded an employer's obligation ends with providing the meal period. Once a meal break begins, an employee is "at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done."

The Court also decided that though first meal break must be provided no later than five hours into a shift, the employer need not schedule another meal break within five hours after the first meal period ended. Rather, employers must only provide a second meal break after 10 hours of work.

 

Employee Break Times Put to Rest Too

 

The Supreme Court cited Industrial Welfare Commission wage order rules, deciding that employees are entitled to a 10 minute break in the middle of each four hour work period (or “major fraction thereof”), meaning for many employees a rest break should be permitted between 3.5 and 6.0 hours of work into a shift. However, rest breaks are not necessarily required for a specific time before or after the meal period.

 

The Takeaway

 

All in all, the decision today is good news for employers, as it limits the scope of responsibility regarding meal periods:

“We conclude that under Wage Order No. 5 and Labor Code section 512, subdivision (a), an employer must relieve the employee of all duty for the designated period, but need not ensure that the employee does no work.”

 

Sue M. Bendavid is the Chair of our Employment Practice Group. Employers with questions regarding today's landmark decision can reach her at 818.990.2120.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

Thursday
Mar292012

Social Networking and Recruiting - Should Employers Ask for Facebook Passwords?

Lawyer for EmployerWage and Hour Defense

by Nicole Kamm

818.907.3235

 

Many employers these days are incorporating policies on social networking in their employee handbooks. Usually the policies address whether or not employees can use work computers and other devices to access personal accounts such as Facebook, Twitter, etc.

But according to a recent article from the Associated Press, there is a growing trend in which Human Resources professionals are screening applicants through their social media accounts by asking for passwords to Facebook and other personal pages, or requesting applicants log into their Facebook accounts on a company computer. Some recruiters are also asking applicants to add them as a friend on the social network.

This practice appears to be particularly common in the law enforcement, government or security sectors, though employers in other industries (such as retailer Sears) are now asking as well.

While the law does not currently address the direct implications of social media use in recruiting, there are a number of pending court cases involving social media and applicants/employees that should provide some guidance to employers. Some states, such as Illinois and Maryland, are also attempting to pass legislation that would prohibit employers from asking for an applicant's social media login and password.

There is the additional concern that requesting an applicant’s password violates Facebook’s Terms of Service, which states: “You will not share your password…let anyone else access your account, or do anything else that might jeopardize the security of your account.”  Further, while employers generally can’t ask applicants about certain protected categories, such as race, religion, age, sexual preference, marital status, or disability, gaining access to a social media site would likely reveal such information without employers having to directly ask for it.

While an applicant may lawfully refuse a password request, in today’s economy, many choose not to so as not to risk losing the job opportunity.

So what is an employer to do?

 

The DOs and DON'Ts of Social Networking and Recruiting

 

According to a study commissioned by Microsoft and conducted by market research company Cross-Tab, about 70 percent of HR representatives report rejecting an applicant because of information found online. Many of the companies the representatives recruit for actually mandate online screening of candidates as part of the hiring process.

Employers using social media to s­creen job-seekers are advised: 

  1. If you use social media in your recruiting, use it consistently (i.e., conduct the same searches at the same point in the process for every applicant). 
  2. Don't create an internet alias to gain access to a candidate's personal profile. In other words, don't set up a John or Jane Doe account to Facebook "friend" your applicants. 
  3. Keep a record of your search by printing the page or saving a screen shot, especially if the search reveals something which raises questions about the candidate.
  4. Notify applicants that you will be reviewing any and all public social media accounts. 
  5. If you perform a background check, make sure you comply with the Federal Fair Credit and Reporting Act, as well as state regulations. 

Use any information you obtain lawfully, and not to make any final employment decisions. 

Nicole Kamm is an Employment Defense Attorney in the San Fernando Valley. You may reach her by calling 818.990.2120, or via e:mail: nkamm@lewitthackman.com

 

 
Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

Tuesday
Mar272012

Injured on Public Property | Suing the Government Poses Challenges

Injury AttorneyPremises Liability Lawyer  

 

by David B. Bobrosky
(818) 907-3254

 

 

In most of the cases we handle, our clients have been injured by the negligence of someone else. The specific cause of action that is alleged and must be proven is generally, simple negligence.

When you’re injured on public property – it is not so simple. A person cannot sue the government for general negligence. Any government claims must be allowed by a specific statute.

Claims against a government entity can be very difficult, and there are many obstacles for people who do not know how to navigate such waters.

The most common claim we bring against government entities are claims for injuries due to a dangerous condition of public property. California Government Code Section 835 describes the elements a Plaintiff must prove when bringing such a claim:

  1. The government entity owns or controls the property at issue;         
  2. The subject property was in a dangerous condition at the time of the accident;       
  3. The dangerous condition created a reasonably foreseeable risk of the kind of injury which occurred; and
  4. The condition was created by a negligent or wrongful act or omission of an employee within the course and scope of employment.

-OR-

The entity had actual or constructive notice of the condition in a reasonable amount of time to have taken preventive measures.

I will not discuss all of the elements in this blog post. I will, however, discuss some of the most important aspects of handling such claims.

 

Determining Property Ownership – Is it Public or Private?

 

The first element can be a trap for the unwary.

If you are injured because of the condition of any property, we must quickly determine if it was owned or controlled by the government, and if so, which entity.

Sometimes it’s easy to determine if you've been injured on public property. For example, a dangerous curve in a roadway – easy to know it involves a public entity. We'll have to determine if that roadway is the responsibility of the State, the City, or the County.

Other situations may involve a piece of land or a business that seems to be private, but is operated by a government entity. Many times there are no signs letting us know who owns or runs a piece of property.

For example, we once represented a client who tripped and fell because of  uneven pavement in the parking lot of a restaurant. It just so happened that the State of California owned and operated the parking lot. If our client had waited to file a claim, the client may have missed the window for compensation by the responsible party (see the timeframes listed below).

 

Suing the Government – A Two-Step Process

 

Getting to a lawyer soon after a serious injury is imperative when a government claim could be involved, because:             

  1. A claim must be filed against the proper government entity within six months of the accident;
  2. The government has 45 days to respond to a claim. If the responsible entity denies the claim (and they almost always do), generally a lawsuit must be filed within 6 months of the written denial of the claim.

There are exceptions to these basic rules, and other time frames that might apply, but these are the general rules that must be followed. Courts are very strict when it comes to enforcing these statutory requirements.

 

The Government Claim - Proving the Dangerous Condition

 

Assuming you follow the proper procedures and have successfully initiated litigation, you must now prove your claim.

California Government Code Section 830(a) defines a “dangerous condition” as:

a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.

One category of dangerous conditions is public property or improvements that are damaged or deteriorated. Examples can include:

  • A sidewalk that has become damaged resulting in uneven or broken pavement;
  • A stop sign that is covered by overhanging trees;
  • A roadway where lane markings have deteriorated, exposing travelers to potential accidents.

Another dangerous condition includes bad design or planning, such as:

  • A dangerous curve that is not easily recognized or navigated by drivers;
  • Turn lanes in areas where turning vehicles and oncoming drivers do not see each other in a sufficient amount of time to allow for safe decisions when turning;
  • Not installing crosswalks where they are obviously needed.

All of these conditions are examples of conditions that can create substantial risk of injuries to reasonably careful users.

Remember though, that government entities have a multitude of immunities and defenses available to them to fight these claims. This is why it is so important to hire an experienced personal injury lawyer if you have a government claim. A lawyer not experienced in handling government claims can easily lose them before they even get to trial.

David B. Bobrosky is an Encino Injury Attorney at our Firm. If you have questions about a personal injury you suffered, contact him via e-mail: dbobrosky@lewitthackman.com.

 
Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

Thursday
Mar222012

Franchisee Law - PMPA Protects Gas Station Franchise Owners

 

Business Litigation Attorney EncinoFranchise & Business Litigation Attorney

 

by David Gurnick
818.907.3285

 

British Petroleum or BP, one of the world's largest oil companies, owns the ARCO gas station brand. Recently, BP announced they will sell their southern California oil refinery as well as a number of their ARCO locations here, while allowing other gas station franchise agreements to expire without being renewed.  

Gas FranchiseThis announcement has caused anxiety among numerous franchised ARCO dealers in Southern California. Will many of these gas station franchisees find themselves out of business?   

Oil companies supply fuel to the public through retail gas stations. Many gas stations are operated by independent franchisees. In a typical franchise, an oil company [like  Arco (BP), Exxon, Shell or Chevron] leases the premises to the franchisee, lets the franchisee use the company's brand, and agrees to sell gasoline to the franchisee for resale. Tens of thousands of franchised gas stations serve the public across the USA. These franchisees may be protected under the Petroleum Marketing Practices Act, or PMPA. 

 

PMPA Cuts Both Ways

 

In response to unfair terminations and nonrenewals of franchise agreements, Congress enacted the PMPA in 1978. The PMPA limits the circumstances in which an oil company may terminate a franchise or choose not to renew the franchise relationship at the end of the agreement's term. A franchisor may terminate a franchise or choose not to renew only if the franchisor provides prior written notice and has a good reason, recognized in the Act.

A franchisee can sue in federal court against a franchisor that violates the PMPA's restrictions against termination or nonrenewal. Various remedies are available to a franchisee, including damages, attorney's fees, costs of expert witnesses and equitable relief. A court can grant a preliminary injunction to protect a franchisee from a wrongful termination or nonrenewal. 

Franchisee Gas StationIn the BP situation, dealers may find some solace in the PMPA. Under that federal law, an oil industry franchisor cannot terminate a franchise early, or elect not to renew when its term expires, unless certain conditions are met. One of these conditions is that the Franchisor elects "in good faith and in the normal course of business" to withdraw from marketing fuel through retail outlets in the relevant geographic market area. When such a decision is made, the franchisor must offer to sell, transfer or assign its interest in the premises to the franchisee, or offer the franchisee an opportunity to buy the premises on the same terms as the franchisor is selling to someone else.

The PMPA has other detailed provisions which, if followed, may not prevent BP from completing its plan. But franchised ARCO dealers, and franchisees of any oil company, have rights as well, and may wish to explore those rights before their franchises are terminated, or not renewed.

David Gurnick is a Certified Specialist in Franchise and Distribution Law, as designated by the State Bar of California Board of Legal Specialization. You may reach the franchise attorney by calling 818.907-3285  or by email at dgurnick@lewitthackman.com.

 

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Thursday
Mar152012

What is Alternative Minimum Tax & Why Are We Paying It?

Trusts & Estate Planning

 

by Kira S. Masteller
818.907.3244

 

In 1969, Congress created the Alternative Minimum Tax (AMT) to ensure that anyone who benefits from certain tax advantages pays at least a minimum amount of tax. The AMT was intended to be a flat tax for the wealthy.

Unfortunately, Congress seems to have missed those that they targeted and aimed instead at many unintended taxpayers who now have to deal with a very complex set of rules that few, even in the tax community, fully understand.

What Does AMT Do?

 

 The AMT provides an alternative set of rules for calculating a minimum tax for the so called wealthy.

In general, the AMT determines a minimum amount of tax that should be required for those taxpayers deemed wealthy; that have a number of defined tax preferences, or loopholes (as some call those deductions that were originally intended to stimulate the economy, that others may not be able to utilize); resulting in specifically politically stratified oriented taxation or penalty for those that invest in America. (?)

Should the regular income tax fall below this minimum there is a complex recalculation based upon disallowing those “loopholes.” Some of these include:

  • Home Mortgage Interest,
  • Charitable Donations, 
  • Investment Expenses,
  • Passive Income or Losses,

and numerous other “socially unacceptable” deductions resulting in an Alternative Minimum Tax.

Tax laws provide specific tax benefits for certain kinds of income and allow special deductions and credits for certain expenses sometimes resulting in no or little tax if a taxpayer utilized those advantages by investing in the American economy.

Congress has never truly adjusted the AMT for inflation, and because of this, .a growing number of middle-income taxpayers are discovering they are being ensnared by the AMT system. 

The AMT exemption amounts allowed as total deductions in lieu of your total itemized deductions, are set by Congress for each filing status.

If your total itemized deductions are in excess of the amounts listed below, you lose all of any exemptions above these amounts set by your favorite group in Washington..

For tax year 2011, Congress raised the AMT exemption amounts to the following levels:

  • $74,450 for a married couple filing a joint return and qualifying widows and widowers;
  • $48,450 for singles and heads of household;
  • $37,225 for a married person filing separately.

The minimum AMT exemption amount for a child whose unearned income is taxed at the parents' tax rate has increased to $6,800 for 2011.

These amounts are in addition to the other complex rules that relate to the percentage loss of medical deductions, what is termed as excess mortgage interest deductions, and the limitations on business expenses. Yes, it’s complex.

Kira S. Masteller is a Trust and Estate Planning Attorney who works with individuals and their businesses to maximize savings and profits. You may reach her by calling 818.990.2120.

 

 
Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

LEWITT HACKMAN | 16633 Ventura Boulevard, Eleventh Floor, Encino, California 91436-1865 | 818.990.2120